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Wednesday round-up

Yesterday the Senate Judiciary Committee voted to endorse Elena Kagan’s nomination to the Supreme Court. The final tally was thirteen “aye”s to six “nay”s, with Senator Lindsey Graham (R-SC) joining the committee’s twelve Democrats to vote in Kagan’s favor. Today’s editions of USA Today, the Los Angeles Times, the Wall Street Journal, the Christian Science Monitor, the New York Times, the Boston Globe, and the Washington Post all have coverage of this step toward confirmation, as do NPR, Slate, CNN, and Politico. C-SPAN has video coverage of the nearly three-hour committee meeting.

In his Washington Post column, Dana Milbank praises Senator Graham’s explanation of his vote as a “penetrating indictment of the tribal logic that has overtaken his colleagues.” Even so, the vote “ensures [Graham] will face a serious primary challenge in 2014,” writes Chris Cillizza on the Washington Post’s The Fix blog. Meanwhile, the Wall Street Journal’s Washington Wire blog reports on a letter of support for Miguel Estrada that Kagan wrote in response to Senator Graham’s questions about Estrada during her hearings.

Revisiting questions about whether, if confirmed, Kagan should recuse herself from hearing challenges to health-care reform legislation, the editorial board of the Wall Street Journal opines on “how extraordinary it is that she would have played no role at [the Department of] Justice even in discussing the cases.” And at Balkinization, Jack Balkin characterizes the Kagan confirmation battle as reflecting a shift in conservatives’ rhetoric:  although they have previously insisted that judges should exercise “judicial restraint,” he asserts, they now focus on “fidelity to the law” as a result of “the changing mix of constitutional issues before the federal courts.”  (ACSblog also has a post discussing how “Republicans are looking for the Supreme Court to substantially limit the sweep of the Constitution’s commerce clause.”)

In another opinion piece in the Wall Street Journal, Pete Hegseth – an Iraq war veteran who testified against Kagan’s confirmation – argues that Kagan “does not belong on the Supreme Court” because she “used her position of authority as dean of Harvard Law School to impede, rather than empower, the warriors who fight, and have fallen, for our freedoms.” An opinion piece in the Christian Science Monitor criticizes Kagan for a different reason: Thomas Bowden of the Ayn Rand Center for Individual Rights contends that Kagan “rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights” and instead “adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.”


  • In his Sidebar column for the New York Times, Adam Liptak focuses on a single sentence in Justice Ginsburg’s opinion in Christian Legal Society v. Martinez, in which she wrote – discussing laws affecting gays and lesbians – that “[o]ur decisions have declined to distinguish between status and conduct in this context.”  That sentence, Liptak suggests,  could be “both a time bomb and a tea leaf that [may] figure in litigations concerning same-sex marriage on two coasts.”
  • The New York Times reports that immigrants whose deportations would now be invalid under the Court’s decision in Carachuri-Rosendo v. Holder have “no way to turn that legal vindication into a chance to come home.”
  • NPR’s Ari Shapiro has a story about the President’s judicial nominations “languish[ing]” in the Senate. He reports that “the Senate has confirmed only 37 of Obama’s judicial nominees, a little more than half as many as during the same period of time under President Bush.”
  • The Hartford Courant has a report on a Connecticut eminent domain dispute between a developer and the city of Branford. The developer will soon ask the Supreme Court to review the case.
  • Constitutional Law Prof Blog has a post on a new biography of Justice Sonia Sotomayor.
  • And finally, at the Huffington Post, humorist Tim Siedell asks whether we can “really afford to hire another Supreme Court Justice in this economy.”